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ASIC Class Order [CO 05/738]

Authoritative Version
CO 05/738 Orders/ASIC Class Orders as made
Class Order [CO 05/738] grants unconditional relief to persons providing financial services in relation to gift facilities, such as gift vouchers or cards. This means that the licensing, conduct and disclosure obligations (as well as the hawking prohibition) in Chapter 7 of the Corporations Act will not apply.
Administered by: Treasury
General Comments: This instrument was gazetted in the Australian Securities and Investments Commission Gazette on 15 November 2005.
Registered 18 Nov 2005
Tabling HistoryDate
Tabled HR28-Nov-2005
Tabled Senate28-Nov-2005
Date of repeal 23 Mar 2016
Repealed by ASIC Corporations (Repeal) Instrument 2016/212
Table of contents.

Australian Securities and Investments Commission
Corporations Act 2001 — Paragraphs 911A(2)(l), 926A(2)(a), 951B(1)(a), 992B(1)(a) and 1020F(1)(a) — Exemptions

Enabling legislation

1.         The Australian Securities and Investments Commission grants the exemptions set out in:

(a)        paragraph 4(a) under paragraphs 911A(2)(l), 992B(1)(a) and 1020F(1)(a) of the Corporations Act 2001 (the Act);

(b)        paragraph 4(b) under paragraphs 926A(2)(a), 951B(1)(a) and 992B(1)(a) of the Act; and

(c)        paragraph 4(c) under paragraph 951B(1)(a) of the Act.

Title

2.         This instrument is ASIC Class Order [CO 05/738].

Commencement

3.       This instrument commences on the later of:

(a)      the date it is registered under the Legislative Instruments Act 2003; and

(b)     the date of its gazettal.

Note:   An instrument is registered when it is recorded on the Federal Register of Legislative Instruments (FRLI) in electronic form: see Legislative Instruments Act 2003, s 4 (definition of register). The FRLI may be accessed at http://www.frli.gov.au/.

Exemptions for providers of gift facilities

4.       A person who provides financial services in relation to a gift facility does not have to comply with:

(a)     subsection 911A(1), section 992A and Part 7.9 of the Act in relation to those financial services; and

(b)     where the person is a financial services licensee—Part 7.6 (other than subsection 911A(1) and Divisions 4 and 8), Divisions 2, 3 and 4 of Part 7.7, Divisions 2, 3, 5 and 6 of Part 7.8 of the Act in relation to those financial services; and

(c)     where the person is an authorised representative of a financial services licensee—Divisions 2, 3 and 4 of Part 7.7 of the Act in relation to those financial services.

Interpretation

5.       In this instrument:

 

authorised representative has the meaning given by section 761A of the Act.

 

device includes a certificate, voucher, token, card, coin or other object by which a person may use the gift facility.

 

facility has a meaning affected by section 762C of the Act.

 

gift facility means a facility through which, or through the acquisition of which, a person makes non-cash payments for goods or services, in relation to which all of the following are satisfied:

 

(a)                     the amount standing to the credit of the facility and which is available for the making of non-cash payments under the facility:

 

(i)                  is determined at the time of the issue of the facility; and

 

(ii)                cannot be increased after the issue of the facility unless it is because of the reversal of a payment made under the facility in the case of refund or because of a correction of an error; and

 

(iii)               cannot be withdrawn from the facility in whole or in part by means of a cash payment (except for the withdrawal of the full amount standing to the credit of the facility after one or more non-cash payments have been made through the facility being an amount that in the reasonable opinion of the issuer of the facility, is unlikely to be able to be conveniently used under the facility);

 

(b)                    the facility may be used to make non-cash payments on more than one occasion;

 

(c)                     the facility is only promoted or marketed as a gift product;

 

(d)                    if:

 

(i)         under the terms of the facility there is a date (the expiry date) after which the facility cannot be used for the making of non-cash payments (regardless of whether there is an amount standing to the credit of the facility at the end of the expiry date); and

 

(ii)        the facility is issued on or after 1 June 2006;

 

the expiry date is:

 

(iii)       in the case where the presentation of a device is the means by which a person uses the facility—prominently set out on the device in a manner that makes it clear that it is an expiry date; or

 

(iv)       in any other case—prominently displayed in a manner that:

 

(A)       could reasonably be expected to come to the attention of a person who is given or given use of the facility at the time it is given and at the time it is used; and

 

(B)       makes it clear that it is an expiry date; and

 

(e)                     the facility is not a component of another financial product.

 

issuer has the meaning given by subsection 761E(4) of the Act.

 

makes non-cash payments has the meaning given by section 763D of the Act.

 

 

 

Dated this 14th day of November 2005
Signed by Brendan Byrne

as a delegate of the Australian Securities and Investments Commission